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Brexit: the implications for the devolution settlement

Alan Page, University of Dundee, expands on his presentation from last Tuesday's Scotland and Brexit event. He explains that the implications of EU withdrawal for the devolution settlement are far-reaching - quite apart from the question of a second independence referendum.

The implications of EU withdrawal for the devolution settlement are far-reaching - quite apart from the question of a second independence referendum. In these remarks I want to concentrate on the implications for the Scottish Parliament’s legislative competence and the future of EU law in Scotland.

New powers for the Scottish Parliament?

In terms of the Scottish Parliament’s legislative competence, there are two key points. The first is that, in the absence of any amendment to the Scotland Act 1998, withdrawal would not affect the distribution of legislative competences between the UK and Scottish Parliaments. The distribution would remain as set out in the Scotland Act 1998, as amended by the Scotland Act 2012 and 2016.

But although the Scottish Parliament would not acquire any new powers as such, in the absence of any amendment to the Scotland Act, it would acquire the power to legislate in policy areas such as agriculture or fisheries where its role at the moment is essentially one implementing laws decided at the EU level.

Which policy areas then are we talking about?

The short answer is rather fewer than we might think, or than might have been assumed in the immediate aftermath of the EU referendum.

An examination of the status of EU competences in terms of whether they are reserved or devolved, reveals that the vast majority are reserved to the UK Parliament, with relatively few being devolved to the Scottish Parliament.

If we ask why this should be the case, the answer is that the devolution settlement, like the EU, is based on a ‘single market’ in goods, persons, services and capital. Most single market competences are thus reserved, with very few being devolved, and those on the basis that the former Scottish Office was responsible for them before devolution.

In the absence of any amendment to the Scotland Act, therefore, the UK Parliament would acquire the majority of the policy responsibilities that would fall to the UK following withdrawal from the EU, including those in respect of the free movement of goods, persons, services and capital, and the negotiation and conclusion of trade agreements with non-EU countries, while those that would fall to the Scottish Parliament would be principally those in respect of justice and home affairs, agriculture, fisheries and the environment, which the former Scottish Office was responsible for before devolution.

The scale of the challenge facing the Scottish Parliament in terms of EU withdrawal is thus much smaller than that facing the UK Parliament, and does not include anything that will not be faced by the UK Parliament. As with much EU-related Scottish government activity this opens up the possibility of relying on the UK, a possibility the implications of which in terms of parliamentary oversight I come back to below.

Staying with the policy areas that would fall to the Scottish Parliament, the prospect is said to be one of increasing policy and legislative divergence between the nations and regions of the UK in the absence of a common EU framework, although the extent of international obligations has led some observers to question how much scope there would be for change in the environmental field. It may be therefore that adjustments will be made to the boundary between reserved and devolved matters in order to prevent such divergence emerging. Any such adjustments would require the consent of the Scottish Parliament and would thus be a matter for agreement between the two governments. The need for such adjustments may in turn provide the starting point for a post-EU withdrawal devolution settlement.

Challenges to Acts of the Scottish Parliament

Withdrawal also implies that Acts of the Scottish Parliament should no longer be open to challenge on grounds of incompatibility with EU law. The question that will arise here is whether an amendment to the Scotland Act to this effect also requires the consent of the Scottish Parliament. In my view it would. Were the Scottish Parliament’s consent to be withheld, it would not affect the validity of the amending legislation. But although its validity would not be affected, the possibility, if not likelihood, of the Scottish Parliament’s consent being withheld may well provide an incentive to arrive at an agreed settlement, as happened with the Scotland Acts 2012 and 2016.

In terms of the day-to-day business of devolved government, however, the removal of the restrictions entailed by EU law is likely to be at least as significant as any new policy responsibilities the Scottish Parliament may acquire as a result of EU withdrawal. It would mean that new legislation would no longer need to be ‘EU proofed’, i.e. scrutinised in order ensure that it was compatible with EU law. It would also mean that Acts of the Scottish Parliament could no longer be blocked or their implementation delayed on grounds of incompatibility with EU law, as is currently the case, for example, with alcohol minimum pricing.

EU law in Scotland

EU law will cease to apply in Scotland as it will cease to apply in the rest of the rest of the UK, subject to the terms of any future relationship with the EU. The repeal of section 2(1) of the European Communities Act 1972, which gives effect to EU law in the UK, without more, however, would result in legal chaos. The likelihood is therefore that effect will continue to be given to some or all EU law until such time as fuller consideration can be given to the question of whether it should be retained, amended or replaced. As with the transposition of EU obligations since the UK joined the then European Communities EU in 1973 it is difficult to see the relationship between EU law and UK law being unpicked without wide subordinate law making powers - an EU (Withdrawal) Act equivalent of section 2(2) of the European Communities Act 1972. The power to make such legislation will be exercisable by the Scottish Ministers in areas of devolved competence. The question that will arise is whether it should be exercisable by UK Ministers as well, as is currently the case with the implementation of EU obligations in the devolved areas, which would then open up the possibility of relying on UK subordinate legislation in disentangling UK law from EU law and filling any resulting gaps. This raises in turn the question of Scottish parliamentary control over such legislation. At the moment there is no requirement of the Scottish Parliament’s consent to UK subordinate legislation implementing EU obligations in the devolved areas; nor is the Parliament routinely informed about such legislation. In my view, this represents a significant gap in the framework of Scottish parliamentary control over UK law making in the devolved areas, which the Scottish Parliament should be alert to the need to address.

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